Protection of the Sea (Prevention of Pollution From Ships) Amendment (Air Pollution) Bill 2019 [2019] AUSStaCSBSD 114 (16 October 2019)

• Protection of the Sea (Prevention of Pollution from Ships) Amendment (Air Pollution) Bill 2019
• Reversal of evidential burden of proof 83
• Reversal of legal burden of proof88

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Protection of the Sea (Prevention of Pollution from Ships) Amendment (Air Pollution) Bill 2019

Purpose	This bill seeks to amend the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 to implement Australia’s international obligations in relation to sulphur emissions from ships under Annex VI of the International Convention for the Prevention of Pollution from Ships, 1973.
Portfolio	Infrastructure, Transport, Cities and Regional Development
Introduced	House of Representatives on 18 September 2019

Reversal of evidential burden of proof ^[83]

1.132 Proposed section 26FEGA seeks to provide a number of exceptions (offence specific defences) in relation to the offences in section 26FEG of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Protection of the Sea Act). Section 26FEG provides that it is an offence to use fuel oil with sulphur content more than the prescribed limit on board a ship in certain areas.

1.133 The explanatory memorandum states that:

It is reasonable that the defendant should have to present, or point to, evidence that suggests a reasonable possibility that any of the matters set out in section 26FEGA occurred.^[84]

1.134 Proposed section 26FEHA seeks to provide a number of exceptions (offence specific defences) in relation to the offences in section 26FEH of the Protection of the Sea Act. Section 26FEH provides that it is an offence to take an Australian flagged ship into an emission control area if the ship does not meet the SOx emission control conditions. The explanatory memorandum provides no information in relation to why the reversal of evidential proof is appropriate for this proposed section.

1.135 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.^[85]

1.136 The committee notes that the Guide to Framing Commonwealth Offences^[86] provides that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence), where:

• it is peculiarly within the knowledge of the defendant; and

• it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.

1.137 While in this instance the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified. The reversals of the evidential burden of proof in proposed sections 26FEGA and 26FEHA have not been adequately addressed in the explanatory materials.

1.138 As the explanatory materials do not adequately address this issue, the committee requests the minister's advice as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in this instance. The committee's consideration of the appropriateness of provisions which reverse the evidential burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[87]

Reversal of legal burden of proof^[88]

1.139 Item 20 of Schedule 1 to the bill seeks to insert a number of presumptions in relation to the offences in section 26FEG of the Protection of the Sea Act.^[89] Item 27 of Schedule 1 to the bill seeks to insert subsection 26FEH(6) which provides that, for the purpose of section 26FEH, fuel oil on board a ship is presumed to be carried for use as fuel unless the contrary is proved. By requiring the defendant to prove the matters in items 20 and 27 of the bill, the provisions reverse the legal burden of proof.^[90]

1.140 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. The inclusion of presumptions in relation to offences interferes with this common law right by placing a legal burden on the defendant to rebut the presumption. The committee expects any provision that places a legal burden of proof on the defendant to be fully justified in the explanatory materials. Additionally, the committee notes that the Guide to Framing Commonwealth Offences states that the inclusion of presumptions in relation to offences should be kept to a minimum.^[91]

1.141 In relation to proposed subsections 26FEG(4) and 25FEH(6), the explanatory memorandum states that a legal burden is appropriate because 'a defendant would be able to uniquely demonstrate that the fuel is used for combustion or operation on board the ship'.^[92] Similarly, for proposed subsection 26FEG(5), the explanatory memorandum states that a defendant 'would be able to validate the location of the offence was within an Australian maritime zone for all ships and for Australian ships beyond this jurisdiction'.^[93] The committee notes these explanations, however it does not consider that they adequately address why it is appropriate to place a legal burden of proof on the defendant.

1.142 As the explanatory materials do not adequately address this issue, the committee requests the minister's advice as to why it is proposed to place a legal burden of proof on the defendant by including presumptions in relation to these offences. The committee also requests the minister's advice as to why it is not sufficient to reverse the evidential, rather than legal, burden of proof in this instance.

1.143 The committee's consideration of the appropriateness of provisions which include presumptions in relation to offences is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[94]

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[83] Schedule 1, items 7 and 11, proposed sections 26FEGA and 26FEHA. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[84] Explanatory memorandum p. 7.

[85] Subsection 13.3(3) of the Criminal Code Act 1995 provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

[86] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 50-52.

[87] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 50-52.

[88] Schedule 1, items 20 and 27, proposed subsections 25FEG(4)–(6) and 26FEH(6). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[89] Section 26FEG provides that it is an offence to use fuel oil with sulphur content more than the prescribed limit on board a ship in certain areas.

[90] Paragraph 13.4(b) of the Criminal Code Act 1995 provides that a burden of proof imposed on the defendant is a legal burden if the law expressly requires the defendant to prove the matter.

[91] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 53.

[92] Explanatory memorandum, pp 10 and 11.

[93] Explanatory memorandum, p 10.

[94] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 53.